DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB          : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Friday the 27^th day of October 2023

C.C.406/2017

Complainant

Suchithra .P,

Narangali Thayyil (HO),

P.O. Westhill Chungam,

Near Railway Gate, Bhatt Road,

Kozhikode – 673005

                  (By Adv. Sri. Pavithran. K)

Opposite Parties

Palakkadi Praveenkumar,

S/o Raveendran,

‘Deepa Nivas’, Athanikkal,

Parammal Road, west Hill,

Kozhikode – 673005

                 (By Adv. Sri. E.T. Jitheendran)

ORDER

By Sri. V. BALAKRISHNAN – MEMBER  

 This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2. The case of the complainant, in brief, is as follows:

The complainant who was a government servant became widow on 14/04/2014. She purchased 12.5 cents of property at Kannipoyil in Atholi panchayath. To construct a new house there, she took loan from provident fund and employee’s co-operative society. At that time she was transferred to Thiruvananthapuram. There was no other family members to arrange the construction work. Her relative Palakkadi Praveen Kumar, the opposite party was entrusted with the affairs of the proposed construction.

3. She was totally ignorant about building construction work. Believing the opposite party money was advanced to him whenever demanded. She wanted to execute an agreement. The reply given by the opposite party was that they being relatives there was no need for signing an agreement. He was not ready to receive payment by way of cheque. In total Rs 7,75,000/- was given to him in addition to 1565 laterite stones. The assessed value of laterite was Rs. 50/- per one number and the total amount given was Rs. 8,53,000/- including Rs. 78,250 (value of laterite stone ).
4. The work was started in the month of March 2017 and it was stopped in June 2017 without completion. Only laterite masonry, belt concreting and slab concreting was done. She had entrusted the wooden work to some other agencies. M - sand was used instead of river sand. The opposite party assured earlier, that the work would be completed in May 2017. At the same time he had started his own house building construction and the amount given by her for her building construction was diverted to the construction work of the opposite party. In the month of May 2017 she was transferred back to Kozhikode from Thiruvananthapuram and was able to realize all about the deficiency of service of the opposite party. She understood that floor concreting, wall plastering, electrical wiring and additional works are to be done and the work completed at that time amounted only to  Rs.4,00,000/-.
5. The opposite party was contacted with the help of her relative and the police personal of the local police station. He was not willing to complete the work. Her present house at that time was in a dilapidated condition and she was eager to shift to the newly completing house. The opposite party stopped the construction activities in June 2017. And about five months there was no action from his side to complete the work, even though an amount of Rs. 8,53,250/- was given in advance. The action of the opposite party amounts to deficiency of service and as a result she  suffered hardship and mental agony. The complainant has approached this commission to issue a direction to the opposite party to pay Rs. 8,00,000/- to her as compensation for the financial loss and hardship suffered.
6. The opposite party has filed the version. Almost all the allegations of the complainant are denied by the opposite party. The complainant is the daughter of his father’s sister and with that relation only the supervision of the construction work was accepted by him. There was no agreement between them. Amount was handed over by the complainant to the opposite party in the various stages of construction and the accounts were settled on completion of  each stage. In the finishing stage she was not having sufficient money and hence he was constraint to spent money from his pocket to complete the work. Even though she promised to give later, it was not given back. The complaint is lodged by her to get free from the responsibility of this payment.
7. The opposite party had initiated the supervision of the house construction work of the complainant as she was his relative and no consideration was accepted by him. As his activities would not come in the category of service, the complaint may be dismissed by the Commission.      
8. The points that arise for determination in this case are:

1. Whether that the complaint is maintainable?
2. Whether there was any deficiency in service rendered by opposite party to the complainant.
3. Reliefs and costs.
9. The complainant was examined as PW1 and Ext. A1 to A10 were marked. Ext. C1, the Expert Commission Report was also marked. The opposite party filed the affidavit and was examined as RW1.
10. Heard. Argument notes were filed by both parties.
11. POINT NO. 1: The complainant is a widow and was working at Thiruvananthapuram when the construction work of her residential building was started. So she entrusted the work of supervision to the opposite party. It is an admitted fact that procurement of material like cement, steel, sand etc. were done by the opposite party in addition to labour engagement. So the nature of work done by the opposite party is exactly similar to the work of contractor in building construction. There is no dispute regarding the receipt and payments made by the complainant. The opposite party has not adduced any evidence to show that the amount collected was not inclusive of consideration. As per section 2(1)(d) of Consumer Protection Act, 1986 a person who hires or avails of any service for consideration is a consumer. So the complaint in maintainable before this commission.
12. POINT NO. 2: The complainant has filed affidavit in terms of the averments in the complaint and in support of the claim. The main issue of the complainant is that the opposite party collected the full amount needed for the completion of work and diverted the amount for construction of his own house. In total Rs. 77,500/- by way of cash and 1565 laterites worth Rs. 78,250/- were handed over to the opposite party by the complainant. According to opposite party the complainant had paid the amount as required on each stage of work and she was satisfied with the work done. At the end stage of construction work, he had expended additional amount for the work.
13. Going through the evidence in hand, it is an admitted fact that there was no written agreement, but only oral agreement for construction. Ext. A7 is the assessment of work done by opposite party which was prepared by a third party on request by the complainant. It is seen that the method followed for valuation is not an engineering method and the Ext. A7 is not with any authentication. So the findings in Ext. A7 about value of work done is not accepted.
14. C1 is the commission report prepared by the Expert commissioner who is the Assistant Executive Engineer, PWD Buildings Sub Division, Koyilandy. The value of work done assessed by the expert commission comes, to Rs. 7,35,720/- as per the prevailing Delhi Schedule of Rate applying cost index during that period. The value of work done included 5% overhead charges and 10% profit also.
15. It is an undisputed fact that the cash received by opposite party from the complainant was Rs. 7,75,000/-. While on cross examination he admitted that he is satisfied with the amount paid for the work done and there is no pending payments towards him. But in version the opposite party has stated that in the end stage of construction he had expended additional amount. We find that both statements are contradictory. In cross examination he also admitted that a few laterites obtained from quarry in the plot was made available.
16. Analysing the above figures and based on Ext. C1 we find that an excess payment was received by the opposite party. The amount comes to Rs. 7,75,000 – 7,35,720 =39,280 ( Already paid amount – Valued building cost)
17. Keeping the balance amount without returning, amounts to deficiency of service and we find the complainant is to be compensated for his hardship and financial loss suffered by keeping an uncompleted house for a long time. We find that Rs. 25,000/- will be a reasonable compensation in this account in addition to the repayment of Rs. 39,280/- back to the complainant.
18. POINT No. 3: In view of finding on the above points, the complaint is disposed as follows;

                   (a) CC 406/2017 is allowed in part.

                   (b) The opposite party is directed to pay a sum of  Rs. 39,280/-(Rupees  thirty nine thousand two hundred and eighty  only) to                            the complainant, being the excess amount collected.

                   (c) The opposite party is directed to pay a sum of Rs. 25,000/- as compensation to the complainant, for the hardship suffered.

                   (d)The order shall be complied with within 30 days of the receipt of copy of this order, otherwise the amount of Rs. 39,280/-                          ( Rupees thirty nine thousand two hundred and eighty only) will bear interest of 6% per annum till actual payment from                               the date of this order.

Pronounced in open commission on 27^th day of October 2023.

Date of Filing : 10/11/2017

                                Sd/-                                                          Sd/-                                                              Sd/-

                        PRESIDENT                                              MEMBER                                                  MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 – Photo copy of the cancelled cheque given to opposite party by the complainant.

Ext.A2 – Copy of the plan of the house of the complainant.

Ext.A3 – Copy of the letter sent to opposite party by the complainant.

Ext.A4 – Copy of the acknowledgement card. 

Ext.A5 – Copy of the complaint given to SI of Police Atholi Police Station.

 Ext.A6 – Copy of the details of the work done by the opposite party prepared by the complaint.

Ext.A7 – Copy of the details of the work done by opposite party prepared by a 3^rd party.

Ext.A8 – Copy of the letter from the District Police Chief Kozhikode Rural addressed to the complainant.

Ext.A9 – Copy of the letter from Kerala Women’s Commission addressed to the complaint.

Ext.A10 – Photos of house under construction.

Exhibits for the Opposite Party

Nil.

Commission Exhibits

Ext C1  - The Report of Expert Commissioner.

Witnesses for the opposite parties 

RW1 – Praveen Kumar.

                            Sd/-                                                                Sd/-                                                             Sd/-

                    PRESIDENT                                                   MEMBER                                                   MEMBER

True Copy,      

                                                                                                                                               Sd/-

                                               Assistant Registrar.